Defences

Question 1

What is contributory negligence?

Answer 1

Provides that any damages can be reduced according to the level that the claimant contributed to the negligence.
This works when both the claimant and the defendant are to blame.

Question 2

How to satisfy contributory negligence?

Answer 2

1. judge calculates the full amount of damages.
2. Judge then decides the percentage that the claimant is responsible for.
3. The full amount is then reduced by this percentage.

Question 3

What is contributory negligence used for?

Answer 3

• Its a partial defence, which reduces amount of compensation given.
• Possible that on rare occasions it may result in a 100% reduction.
• Commonly used for claims for injuries/ damages suffered in road traffic accidents.

Question 4

What is Volenti non fit?

Answer 4

This is a full defence, used when the claimant voluntarily accepts the risk of harm.
When successful the claimant receives no compensation..

Question 5

How to satisfy Volenti non fit?

Answer 5

1. Claimant must have knowledge of the precise risk.
2. Must exercise free choice
3. Must voluntarily accept the risk.

Question 6

What are restrictions on Volenti non fit?

Answer 6

• Cannot be used for road traffic accidents.
• Will not apply just because they know of the risk they must have a complete understanding of it.
• Will not succeed when they have no choice but to accept the risk they must willingly accept it.
• If they have a duty to act and get injured this defence is not available (fire service, police etc)

Question 7

What are warning signs?

Answer 7

• This is a full defence that can be used for occupiers liability.
• Warning sign ‘will be ineffective unless ‘in all the circumstances it was enough to keep the visitor reasonably safe. ‘
• Must warn of the danger in clear terms and whether its effective for a child will depend on its ability to understand the sign.

Question 8

What is a sufficient warning sign?

Answer 8

Will be based off the facts of each case, where there is a greater level of danger there must be more protection.
E.g. they may be required to erect barriers.
Rae V Marrs.

Question 9

What is the rule with obvious dangers and warning signs?

Answer 9

Where there is an obvious danger just one warning sign will suffice as the trespasser should use common knowledge and avoid these.
Staples V West dorset district council.

Question 10

What are exclusion clauses?

Answer 10

• Occupier will be able to limit or exclude completely his liability within any warning sign.
• Only applies for residential occupiers and for lawful visitors, unlawful visitors may not use this defence.
• If the visitor is a child this may not work is they are unable to understand the warning.

Question 11

What defences are available for unlawful visitors?

Answer 11

1. Contributory negligence
2. Volenti non fit
3. Warning signs